Exhibit 10.1


 


SECOND
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT


 


THIS SECOND AMENDED AND RESTATED INDEMNIFICATION AGREEMENT (this “Agreement”)
is entered into as of the 24th day of April, 2008, by and among
MarkWest Energy Partners, L.P., a Delaware limited partnership (the “Partnership”),
MarkWest Energy GP, L.L.C., a Delaware limited liability company and the
general partner of the Partnership (the “General Partner”), and the undersigned
Director and/or Officer of the General Partner (“Indemnitee”).


 


RECITALS


 


A.            The General
Partner and the Partnership are aware that competent and experienced persons
are increasingly reluctant to serve or continue serving as directors or
officers of companies unless they are protected by comprehensive liability
insurance and adequate indemnification due to the increased exposure to
litigation costs and risks resulting from service to such companies that often
bear no relationship to the compensation of such directors or officers.


 


B.            The statutes and judicial decisions regarding
the duties of directors and officers are often difficult to apply, ambiguous,
or conflicting, and therefore often fail to provide directors and officers with
adequate, reliable knowledge of the legal risks to which they are exposed or
the manner in which they are expected to execute their fiduciary duties and
responsibilities.


 


C.            The General Partner, the Partnership
and Indemnitee recognize that plaintiffs often seek damages in such large
amounts, and the costs of litigation may be so great (whether or not the case
is meritorious), that the defense and/or settlement of such litigation can
create an extraordinary burden on the personal resources of individuals.


 


D.            The General Partner and the
Partnership believe that it is unreasonable for their directors, officers,
employees, controlling persons, agents, or fiduciaries and similar persons at
their subsidiaries to assume the risk of judgments and other expenses which may
occur in cases in which those persons received no personal benefit or were not culpable.


 


E.             The General Partner and the
Partnership recognize that the issues in controversy in litigation against a
director, officer or agent of a corporation or other entity, such as the
General Partner, the Partnership or their subsidiaries, are often related to
the knowledge, motives and intent of such director, officer or agent, that he
or she is usually the only witness with knowledge of the essential facts and
exculpating circumstances regarding such matters, and that the long period of
time which usually elapses before the trial or other disposition of such
litigation often extends beyond the time that the director, officer or agent
can reasonably recall such matters and may extend beyond the normal time for
retirement for such director, officer or agent with the result that he or she,
after retirement or in the event of his or her death, his or her spouse, heirs,
executors or administrators may be faced with limited ability and undue
hardship in maintaining an adequate defense, which may discourage such a
director, officer or agent from serving in that position.


 


F.             The Board of Directors of the
General Partner (the “Board”) has concluded that, to attract and retain
competent and experienced persons to serve as directors and officers of the
General 


 

















 


Partner,
it is not only reasonable and prudent but necessary to promote the best
interests of the General Partner, and the Partnership and its unitholders, for
the General Partner to contractually indemnify the directors, officers and
other persons of the General Partner and the Partnership in the manner set
forth herein, and to assume for itself liability for expenses and damages in
connection with claims against such persons in connection with their service to
the General Partner as provided herein.


 


G.            Section 18-108 of the Delaware
Limited Liability Company Act (the “LLC Act”), under which the General Partner
is organized, and Article 9 of the General Partner’s Amended and Restated
Limited Liability Company Agreement, empowers the General Partner to indemnify
its members, managers, directors, officers, employees and agents by agreement
and to indemnify persons who serve, at the request of the General Partner, as
the directors, officers, employees or agents of other corporations or
enterprises.


 


H.            Section 17-108 of the Delaware
Revised Uniform Limited Partnership Act (the “LP Act”), under which the
Partnership is organized, and Section 7.8 of the Partnership’s Third
Amended and Restated Agreement of Limited Partnership empower the Partnership
to indemnify, among others, any member, partner, officer, director, employee,
agent or trustee of the General Partner, the Partnership or any affiliate
thereof.


 


I.              The General Partner desires that
Indemnitee serves or continues to serve as a director, officer or in another
capacity of the General Partner, and Indemnitee only is willing to serve, or to
continue to serve, if Indemnitee is furnished the indemnity provided for herein
by the General Partner and the Partnership.


 


NOW, THEREFORE, in consideration of the
foregoing premises and the mutual covenants and agreements set forth below, the
parties hereto, intending to be legally bound, hereby agree as follows:


 


1.             Definitions.  For purposes of this
Agreement, the following terms shall have the corresponding meanings set forth
below:


 


“Claim”
means a claim or action, including counterclaims or crossclaims, asserted by a
Person in a Proceeding.


 


“Covered
Entity” means the General Partner, the Partnership, any subsidiary or affiliate
of the General Partner or the Partnership or any other Person for which
Indemnitee is or was or may be deemed to be serving at the request of the
General Partner, or any subsidiary of the General Partner or the Partnership,
as a director, officer, employee, controlling person, agent or fiduciary.


 


“Disinterested
Director” means, with respect to any determination contemplated by this
Agreement, any Person who, as of the time of such determination, is a member of
the Board but is not a party to any Proceeding then pending with respect to any
Indemnification Event.


 


“ERISA”
means Employee Retirement Income Security Act of 1974, as amended, or any
similar Federal statute then in effect.


 


“Exchange
Act” means the Securities Exchange Act of 1934, as amended, or any similar
Federal statute then in effect.


 


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“Expenses”
means any and all direct and indirect fees and costs, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating,
printing and binding costs, telephone charges, postage and delivery service
fees and all other disbursements or expenses of any type or nature whatsoever
reasonably incurred by Indemnitee (including fees of investment bankers,
accountants and, subject to the limitations set forth in Section 3(c) below,
reasonable attorneys’ fees) in connection with or arising from an
Indemnification Event, including, without limitation: (i) the
investigation or defense of a Claim; (ii) being, or preparing to be, a
witness or otherwise participating, or preparing to participate, in any
Proceeding; (iii) furnishing, or preparing to furnish, documents in
response to a subpoena or otherwise in connection with any Proceeding; (iv) any
appeal of any judgment, outcome or determination in any Proceeding (including,
without limitation, any premium, security for and other costs relating to any
cost bond, supersedes bond or any other appeal bond or its equivalent); (v) establishing
or enforcing any right to indemnification under this Agreement (including, without
limitation, pursuant to Section 2(c) below), applicable law or
otherwise, regardless of whether Indemnitee is ultimately successful in such
action, unless as a part of such action, a court of competent jurisdiction over
such action determines that each of the material assertions made by Indemnitee
as a basis for such action was not made in good faith or was frivolous; (vi) Indemnitee’s
defense of any Proceeding instituted by or in the name of the General Partner
or the Partnership under this Agreement to enforce or interpret any of the
terms of this Agreement (including, without limitation, costs and expenses
incurred with respect to Indemnitee counterclaims and cross-claims made in such
action); and (vii) any Federal, state, local or foreign taxes imposed on
Indemnitee as a result of the actual or deemed receipt of any payments under
this Agreement, including all interest, assessments and other charges paid or
payable with respect to such payments.


 


“General
Partner Action” means a Proceeding in which a Claim has been brought by or in
the name of the General Partner or the Partnership to procure a judgment in its
favor.


 


An
“Indemnification Event” shall be deemed to have occurred if Indemnitee was or
is or becomes, or is threatened to be made, a party to or witness or other
participant in, or was or is or becomes obligated to furnish or furnishes
documents in response to a subpoena or otherwise in connection with, any
Proceeding by reason of the fact that Indemnitee is or was or may be deemed a
director, officer, employee, controlling person, agent or fiduciary of any
Covered Entity, or by reason of any action or inaction on the part of
Indemnitee while serving or acting or having served or acted in any such
capacity (including, without limitation, rendering any written statement that
is a Required Statement or is made to another officer or employee of the
Covered Entity to support a Required Statement).


 


“Independent
Legal Counsel” means an attorney or firm of attorneys designated by the
Indemnitee that is satisfactory to a majority of the Disinterested Directors
(or, if there are no Disinterested Directors, the Board) that is experienced in
matters of corporate law and neither presently is, nor in the twenty-four (24)
months prior to such designation has been, retained to represent: (i) the
General Partner, the Partnership or Indemnitee in any matter material to any
such party, or (ii) any other party to the Proceeding giving rise to a
claim for indemnification hereunder.


 


“Losses”
means any and all losses, claims, damages, liabilities, judgments, fines,
penalties, settlement payments, awards and amounts of any type whatsoever
incurred by Indemnitee in connection with or arising from an Indemnification
Event.


 


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“Organizational
Documents” means any and all organizational documents, charters or similar
agreements or governing documents, including, without limitation (i) with
respect to a corporation, its certificate of incorporation and bylaws, (ii) with
respect to a limited liability company, its operating agreement, and (iii) with
respect to a limited partnership, its partnership agreement.


 


“Person”
means an individual, a partnership, a corporation, a limited liability company,
an association, a joint stock company, a trust, a joint venture, an
unincorporated organization or other enterprise or government or agency or
political subdivision thereof.


 


“Proceeding”
means any threatened, pending or completed claim, action, suit, proceeding,
arbitration or alternative dispute resolution mechanism, investigation (formal
or informal), inquiry, administrative hearing, appeal or any other actual,
threatened or completed proceeding, whether brought in the right of a Covered
Entity or otherwise and whether of a civil (including intentional or
unintentional tort claims), criminal, administrative, arbitrative or
investigative nature.


 


“Required
Statement” means a written statement of a Person that is required to be, and
is, filed with the SEC regarding the design, adequacy or evaluation of a
Covered Entity’s internal controls or the accuracy, sufficiency or completeness
of reports or statements filed by a Covered Entity with the SEC pursuant to
federal law and/or administrative regulations, including without limitation,
the certifications contemplated by Sections 302 and 906 of the Sarbanes-Oxley
Act of 2002, as amended, or any rule or regulation promulgated pursuant
thereto.


 


“Reviewing
Party” means, with respect to any determination contemplated by this Agreement,
any one of the following: (i) a majority vote of a quorum of the Board
consisting solely of Disinterested Directors; (ii) a committee consisting
solely of Disinterested Directors, even if such Persons would not constitute a
quorum of Board, so long as such committee was designated by a majority of the
Disinterested Directors; or (iii) Independent Legal Counsel (in which
case, any determination shall be evidenced by the rendering of a written
opinion (which may be in the form of a “more likely than not” opinion)); provided,
the expenses of any such Independent Legal Counsel shall be paid for by the
General Partner.


 


“SEC”
means the Securities and Exchange Commission.


 


“Securities
Act” means the Securities Act of 1933, as amended, or any similar Federal
statute then in effect.


 


2.             Indemnification.


 


(a)           Indemnification of Losses and
Expenses.  If an Indemnification
Event has occurred, then, subject to Section 9 below, the General Partner
and the Partnership shall, jointly and severally, indemnify and hold harmless
Indemnitee, to the fullest extent permitted by law, against any and all Losses
and Expenses, provided the Indemnitee acted in good faith and in a manner
Indemnitee reasonably believed to be in, or not opposed to, the best interests
of the General Partner, and, with respect to any criminal Proceeding, had no
reasonable cause to believe Indemnitee’s conduct was unlawful.  The termination of any Proceeding by
judgment, court order, settlement or conviction or on plea of nolo contendere,
or its equivalent, shall not, of itself, create a presumption that Indemnitee (i) did
not act in good faith in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the General Partner or the Partnership, or (ii) with
respect to any criminal Proceeding, had 


 


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reasonable
cause to believe that Indemnitee’s conduct was unlawful.  Any indemnification provided for herein shall
be made no later than forty-five (45) days after receipt by the General Partner
of the Notice as required by Section 3(a) below and subject
additionally to Section 4 below.


 


(b)           Limitation with Respect to General
Partner Actions. The General Partner and the Partnership shall not
indemnify and hold harmless Indemnitee with respect to any Losses (as opposed
to Expenses) in connection with or arising from any General Partner Action, but
the General Partner and the Partnership shall indemnify and hold harmless
Indemnitee with respect to any Expenses in connection with or arising from any
General Partner Action unless, and only to the extent that, the Indemnitee
shall have been finally adjudged to be liable to the General Partner or the
Partnership with respect thereto by a court of competent jurisdiction due to
Indemnitee’s gross negligence or willful misconduct of a culpable nature in the
performance of Indemnitee’s duties to the General Partner; provided, that
Indemnitee shall nevertheless be entitled to indemnification to extent that any
court in which such General Partner Action was brought shall determine upon
application that, despite the adjudication of liability, but in view of all the
circumstances of the case, the Indemnitee is fairly and reasonably entitled to
Expenses for such indemnification as such court shall deem proper.


 


(c)           Advancement of Expenses.  The General Partner or the Partnership shall
advance Expenses to or on behalf of Indemnitee as soon as practicable, but in
any event not later than 20 days after written request therefore by Indemnitee
which request shall be accompanied by vouchers, invoices or similar evidence
documenting in reasonable detail the Expenses incurred or to be incurred by
Indemnitee.  The Indemnitee hereby
undertakes to repay such amounts advanced only if, and to the extent that, it
shall ultimately be determined by final, nonappealable adjudication that
Indemnitee is not entitled to be indemnified by the General Partner or the
Partnership.  In the event that the
General Partner or the Partnership fails to pay expenses as incurred by
Indemnitee as required by this paragraph, Indemnitee may seek mandatory
injunctive relief from any court having jurisdiction to require the General
Partner or the Partnership to pay expenses as set forth in this paragraph.  If Indemnitee seeks mandatory injunctive
relief pursuant to this paragraph, it shall not be a defense to enforcement of
the General Partner’s and the Partnership’s obligations set forth in this
paragraph that Indemnitee has an adequate remedy at law for damages.


 


(d)           Contribution.  If, and to the extent, the indemnification of
Indemnitee provided for in Section 2(a) above for any reason is held
by a court of competent jurisdiction not to be permissible for liabilities
arising under Federal securities laws or ERISA, then the General Partner and
the Partnership, in lieu of indemnifying Indemnitee under this Agreement, shall
contribute to the amount paid or payable by Indemnitee as a result of such
Losses or Expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Covered Entities and all officers, directors
or employees of the Covered Entities other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such Proceeding), on the one
hand, and Indemnitee, on the other hand, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Covered Entities
and all officers, directors or employees of the Covered Entities other than
Indemnitee who are jointly liable with Indemnitee (or would be if joined in
such Proceeding), on the one hand, and the Indemnitee, on the other hand, in
connection with the action or inaction that resulted in such Losses or
Expenses, as well as any other relevant equitable considerations.  The relative fault of the Covered Entities
and all officers, directors or employees of the Covered Entities other than
Indemnitee who are jointly liable with Indemnitee (or would be if joined in
such 


 


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Proceeding),
on the one hand, and Indemnitee, on the other hand, shall be determined by
reference to, among other things, the degree to which their actions were
motivated by intent to gain personal profit or advantage, the degree to which
their liability is primary or secondary, and the degree to which their conduct
is active or passive.  No Person found
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not found guilty of such fraudulent misrepresentation.


 


(e)           Actions where Indemnitee is
Deceased.  If an Indemnification
Event has occurred, and if prior to, during the pendency of or after completion
of a Proceeding Indemnitee dies, the General Partner and the Partnership shall
indemnify and hold harmless Indemnitee’s heirs, executors and administrators
against any and all Expenses and Losses to the extent Indemnitee would have
been entitled to indemnification pursuant to Sections 2(a) above if
Indemnitee were still alive.


 


3.             Indemnification
Procedures.


 


(a)           Notice of Indemnification Event.  Indemnitee shall give the General Partner
notice as soon as practicable of any Indemnification Event of which Indemnitee
becomes aware, provided that any failure to so notify the General Partner shall
not relieve the General Partner or the Partnership of any of its obligations
under this Agreement, except if, and then only to the extent that, such failure
materially increases the liability of the General Partner or the Partnership
under this Agreement.  In addition,
Indemnitee shall give the General Partner such information and cooperation as
it may reasonably require and as shall be within Indemnitee’s power.


 


(b)           Notice to Insurers.  If, at the time the General Partner receives
notice of an Indemnification Event pursuant to Section 3(a) above,
the General Partner or the Partnership has liability insurance in effect which
may cover such Indemnification Event, the General Partner shall give prompt
written notice of such Indemnification Event to the insurers in accordance with
the procedures set forth in each of the applicable policies of insurance.  The General Partner and the Partnership shall
thereafter take all necessary or desirable action to cause such insurers to
pay, on behalf of Indemnitee, all amounts payable as a result of such
Indemnification Event in accordance with the terms of such policies; provided
that nothing in this Section 3(b) shall affect the General Partner’s
or the Partnership’s obligations under this Agreement or the General Partner’s
or the Partnership’s obligations to comply with the provisions of this
Agreement in a timely manner as provided.


 


(c)           Selection of Counsel.  If the General Partner or the Partnership
shall be obligated hereunder to pay or advance Expenses or indemnify Indemnitee
with respect to any Losses, the General Partner shall be entitled to assume the
defense of any related Claims in a Proceeding, with counsel selected by the
General Partner and approved by Indemnitee in Indemnitee’s reasonable
discretion, upon the delivery to Indemnitee of written notice of its election
so to do.  After the retention of such
counsel by the General Partner, the Indemnitee shall be entitled to employ or
continue to employ separate counsel with respect to such Claims at the cost and
expense of the General Partner and the Partnership unless and until the General
Partner shall have demonstrated to the reasonable satisfaction of Indemnitee
that there is complete identity of issues and defenses and no actual or
potential conflict of interest exists between Indemnitee and the General
Partner with respect to such Claims, after which time further employment of
such counsel by Indemnitee shall be the cost and expense of Indemnitee.  If the General Partner shall not have in fact
retained counsel to assume the defense or shall not continue to retain such
counsel to defend such Claim, then the fees and 


 


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expenses
of Indemnitee’s counsel shall be at the expense of the General Partner and the
Partnership. Neither the General Partner nor the Partnership may settle or
compromise any claim or consent to the entry of any judgment with respect to
which indemnification is being sought hereunder without the prior written
consent of the Indemnitee (such consent not to be unreasonably withheld).


 


4.             Determination of Right to Indemnification.


 


(a)           Successful Proceeding.  To the extent Indemnitee has been successful,
on the merits or otherwise, in defense of any Proceeding referred to in
Sections 2(a) or 2(b), the General Partner and the Partnership shall
indemnify Indemnitee against Losses and Expenses incurred by him in connection
therewith.  If Indemnitee is not wholly
successful in such Proceeding, but is successful, on the merits or otherwise,
as to one or more but less than all Claims in such Proceeding, the General
Partner and the Partnership shall indemnify Indemnitee against all Losses and
Expenses actually or reasonably incurred by Indemnitee in connection with each
successfully resolved Claim.


 


(b)           Other Proceedings.  In the event that Section 4(a) is
inapplicable, the General Partner and the Partnership shall nevertheless
indemnify Indemnitee, unless, but then only to the extent that, a Reviewing
Party chosen pursuant to Section 4(c) determines that Indemnitee has
not met the applicable standard of conduct set forth in Sections 2(a) or
2(b), as applicable, as a condition to such indemnification.


 


(c)           Determination of Entitlement to
Indemnification. A determination that Indemnitee has met the applicable
standard of conduct set forth in Sections 2(a) or 2(b), as applicable, as
a condition to any such indemnification, shall be made by a Reviewing Party
chosen by a majority vote of a quorum of the Board consisting solely of
Disinterested Directors, subject to the following:


 


(i)            A Reviewing Party so chosen shall
act in good faith to assure Indemnitee a complete opportunity to present to
such Reviewing Party Indemnitee’s case that Indemnitee has met the applicable
standard of conduct.


 


(ii)           Indemnitee shall be deemed to have
acted in good faith if Indemnitee’s action is based on the records or books of
account of a Covered Entity, including, without limitation, its financial
statements, or on information supplied to Indemnitee by the officers or
employees of a Covered Entity in the course of their duties, or on the advice
of legal counsel for a Covered Entity or on information or records given, or
reports made, to a Covered Entity by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by a Covered
Entity.  In addition, the knowledge
and/or actions, or failure to act, of any director, officer, agent or employee
of a Covered Entity shall not be imputed to Indemnitee for purposes of
determining the right to indemnification under this Agreement.  Whether or not the foregoing provisions of
this Section 4(c)(ii) are satisfied, it shall in any event be
presumed that Indemnitee has at all times acted in good faith and in a manner
Indemnitee reasonably believed to be in or not opposed to the best interests of
the General Partner.  Any Person seeking
to overcome this presumption shall have the burden of proof and the burden of
persuasion, by clear and convincing evidence.


 


(iii)          If a Reviewing Party chosen pursuant
to this Section 4(c) shall not have made a determination whether
Indemnitee is entitled to indemnification within forty-five (45) days after receipt
by the General Partner of the request therefore, the requisite determination of
entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification, absent (A) a misstatement by
Indemnitee of a material fact, or an omission of a 


 


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material
fact necessary to make Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (B) a prohibition of
such indemnification under applicable law; provided, however, that such 45-day
period may be extended for a reasonable time, not to exceed an additional
fifteen (15) days, if the Reviewing Party in good faith requires such
additional time for obtaining or evaluating documentation and/or information
relating thereto.


 


(iv)          Change in Control.  If the General Partner or the Partnership
under goes a Change in Control, the Reviewing Party shall be the Independent
Legal Counsel.  The General Partner
agrees that if there is such a Change in Control, then with respect to all
matters thereafter arising concerning the rights of Indemnitee to
Indemnification under this Agreement, the General Partner’s Limited Liability
Company Agreement, the Partnership’s Amended and Restated Agreement of Limited
Partnership or any other agreement, as now or hereafter in effect, Independent
Legal Counsel shall be selected by Indemnitee and approved by the General
Partner (which approval shall not be unreasonably withheld).  Such counsel, among other things, shall
render its written opinion (which may be in the form of a “more likely than not”
opinion) to the General Partner, the Partnership and Indemnitee as to whether
and to what extent Indemnitee would be permitted to be indemnified under
applicable law and this Agreement and the General Partner and the Partnership
agree to abide by such opinion.  The
General Partner and the Partnership agree to pay the fees of the Independent
Legal Counsel referred to above and to fully indemnify such counsel against any
and all expenses (including attorneys’ fees), claims, liabilities and damages
arising out of or relating to this Agreement or its engagement pursuant hereto.


 


For
purposes of this Section 4(c)(iv), a “Change in Control” shall mean (a) a
dissolution or liquidation of a Person, or (b) a consolidation or merger
of a Person with or into any other corporation other entity or person, or any
other corporate reorganization, in which the equity holders of the affected
Person immediately prior to such consolidation, merger or reorganization, own
less than 50% of the affected Person’s voting power immediately after such
consolidation, merger or reorganization; provided, however, that
a “Change of Control” shall not include any transaction with an Affiliate or Affiliates
of the General Partner or the Partnership or any consolidation or merger
effected exclusively to change the domicile of the General Partner or the
Partnership.


 


(d)           Appeal to Court.  Notwithstanding a determination by a
Reviewing Party chosen pursuant to Section 4(c) that Indemnitee is
not entitled to indemnification with respect to a specific Claim or Proceeding
(an “Adverse Determination”), Indemnitee shall have the right to apply to the
Court of Chancery of Delaware, the court in which that Claim or Proceeding is
or was pending or any other court of competent jurisdiction for the purpose of
enforcing Indemnitee’s right to indemnification pursuant to this Agreement,
provided that Indemnitee shall commence any such Proceeding seeking to enforce
Indemnitee’s right to indemnification within two (2) years following the
date upon which Indemnitee is notified in writing by the General Partner of the
Adverse Determination.  In the event of
any dispute between the parties concerning their respective rights and
obligations hereunder, the General Partner shall have the burden of proving by
clear and convincing evidence that the General Partner and the Partnership are
not obligated to make the payment or advance claimed by Indemnitee.


 


(e)           Presumption of Success.  The General Partner and the Partnership
acknowledge that a settlement or other disposition short of final judgment
shall be deemed a successful resolution for purposes of Section 4(a) if
it permits a party to avoid expense, delay, distraction, disruption or
uncertainty.  In the event that any
Proceeding to which Indemnitee is a party is resolved in any 


 


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manner
(other than by adverse judgment against Indemnitee) including, without
limitation, settlement of such Proceeding with or without payment of money or
other consideration, it shall be presumed that Indemnitee has been successful
on the merits or otherwise in such Proceeding. Anyone seeking to overcome this
presumption shall have the burden of proof and the burden of persuasion, by
clear and convincing evidence.


 


(f)            Expenses Related to this
Agreement.  Notwithstanding any other
provision in this Agreement to the contrary, the General Partner and the
Partnership shall indemnify Indemnitee against all Expenses incurred by
Indemnitee in connection with any Proceeding under this Section 4
involving Indemnitee and against all Expenses incurred by Indemnitee in
connection with any other Proceeding between the General Partner and the
Partnership, on one hand, and Indemnitee on the other, involving the
interpretation or enforcement (subject to Section 10) of the rights of
Indemnitee under this Agreement unless a court of competent jurisdiction finds
that each of the claims and/or defenses of Indemnitee in any such Proceeding
was frivolous or made in bad faith.


 


5.             Additional Indemnification Rights; Non-exclusivity.


 


(a)           Scope. The General Partner and
the Partnership hereby agree, jointly and severally, to indemnify Indemnitee to
the fullest extent permitted by law, even if such indemnification is not
specifically authorized by the other provisions of this Agreement or any other
agreement, the Organizational Documents of any Covered Entity or by applicable
law.  In the event of any change after
the date of this Agreement in any applicable law, statute or rule which
expands the right of a Delaware corporation or other entity to indemnify a
member of its board of directors or an officer, member, manager, employee,
controlling person, agent or fiduciary, it is the intent of the parties hereto
that Indemnitee shall enjoy by this Agreement the greater benefits afforded by
such change. In the event of any change in any applicable law, statute or rule which
narrows the right of an Delaware corporation or other entity to indemnify a
member of its board of directors or an officer, member, manager, employee,
controlling person, agent or fiduciary, such change, to the extent not
otherwise required by such law, statute or rule to be applied to this
Agreement, shall have no effect on this Agreement or the parties rights and
obligations hereunder except as set forth in Section 9(a) hereof.


 


(b)           Non-exclusivity.  The rights to indemnification, contribution
and advancement of Expenses provided in this Agreement shall not be deemed
exclusive of, but shall be in addition to, any other rights to which Indemnitee
may at any time be entitled under the Organizational Documents of any Covered
Entity, any other agreement, any vote of members or unitholders, as the case
may be, or Disinterested Directors, applicable law or otherwise.  Furthermore, no right or remedy herein
conferred is intended to be exclusive of any other right or remedy, and every
other right and remedy shall be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise.  The assertion of any right or
remedy hereunder or otherwise shall not prevent the concurrent assertion of any
other right or remedy.  The rights to
indemnification, contribution and advancement of Expenses provided in this
Agreement shall continue as to Indemnitee for any action Indemnitee took or did
not take while serving in an indemnified capacity even though Indemnitee may
have ceased to serve in such capacity.


 


6.             No Duplication
of Payments.


 


The
General Partner and the Partnership shall not be liable under this Agreement to
make any payment of any amount otherwise identifiable hereunder, or for which
advancement is 


 


9

















 


provided
hereunder, if and to the extent Indemnitee has otherwise actually received such
payment, whether pursuant to any insurance policy, the Organizational Documents
of any Covered Entity or otherwise (but specifically excluding any payment
received by the Indemnitee from any insurance policy maintained by or for the
benefit of Indemnitee so long as Indemnitee does not by virtue thereof actually
retain duplicative payments).


 


7.             Mutual
Acknowledgement.


 


Both
the General Partner and the Partnership, on one hand, and Indemnitee on the
other acknowledge that, in certain instances, Federal law or public policy may
override applicable state law and prohibit the General Partner and the
Partnership from indemnifying its directors and officers under this Agreement
or otherwise.  For example, the parties
acknowledge that the SEC has taken the position that indemnification is not
permissible for liabilities arising under certain Federal securities laws, and
Federal legislation prohibits indemnification for certain ERISA violations.  Indemnitee understands and acknowledges that
the General Partner and the Partnership have undertaken, or may be required in
the future to undertake, with the SEC to submit the question of indemnification
to a court in certain circumstances for a determination of the right under
public policy to indemnify Indemnitee, and any right to indemnification
hereunder shall be subject to, and conditioned upon, any such required court
determination.


 


8.             Liability Insurance.


 


(a)           Maintenance of D&O Insurance.  The General Partner and the Partnership
hereby covenant and agree that, so long as Indemnitee shall continue to serve
as an agent of the General Partner or the Partnership and thereafter so long as
Indemnitee shall be subject to any possible proceeding by reason of the fact
that Indemnitee was an agent of the General Partner or the Partnership, the
General Partner or the Partnership, subject to Section 8(c), shall
promptly obtain and maintain in full force and effect directors’ and officers’
liability insurance (“D&O Insurance”) in reasonable amounts from
established and reputable insurers, and the General Partner’s and the
Partnership’s Organizational Documents shall at all times provide for
indemnification and exculpation of officers and directors to the fullest extent
permitted under applicable law.


 


(b)           Rights and Benefits. In all
policies of D&O Insurance, Indemnitee shall be named as an insured in such
a manner as to provide Indemnitee the same rights and benefits as are accorded
to the most favorably insured of the General Partner’s officers and
directors.  The General Partner shall
advise Indemnitee as to the general terms of, and the amounts of coverage
provide by, any liability insurance policy described in this Section 8 and
shall promptly notify Indemnitee if, at any time, any such insurance policy
will no longer be maintained or the amount of coverage under any such insurance
policy will be decreased.   The General
Partner and the Partnership shall take all necessary action to cause any such
insurer(s) to pay, on behalf of Indemnitee, all amounts payable as a
result of a Proceeding in accordance with the terms of such policy or policies
of D&O Insurance.


 


(c)           Limitation on Required Maintenance
of D&O Insurance. 
Notwithstanding the foregoing, the General Partner and the Partnership
shall have no obligation to obtain or maintain D&O Insurance if the General
Partner determines in good faith that such insurance is not available on
commercially reasonable terms or Indemnitee is covered by similar insurance
maintained by a subsidiary of the General Partner or the Partnership.


 


10
















 


(d)           In the event that the General Partner
or the Partnership is also a named insured under any policy of D&O
Insurance, the General Partner and the Partnership hereby covenant and agree
that neither of them will settle any Claims in a Proceeding that may be covered
by such policy and in which Indemnitee has or may incur Expenses or Losses
without the prior written consent of Indemnitee.


 


9.             Exceptions.


 


Any
other provision herein to the contrary notwithstanding, the General Partner and
the Partnership shall not be obligated pursuant to the terms of this Agreement
to indemnify Indemnitee:


 


(a)           against any Losses or Expenses, or
advance Expenses to Indemnitee, with respect to Claims initiated or brought
voluntarily by Indemnitee, and not by way of defense (including, without
limitation, affirmative defenses and counterclaims), except (i) Claims to
establish or enforce a right to indemnification, contribution or advancement
with respect to an Indemnification Event, whether under this Agreement, any
other agreement or insurance policy, the Organizational Documents of any
Covered Entity, applicable law or otherwise, (ii) if the Board has
approved specifically the initiation or bringing of such Claim. (iii) if
such indemnification is expressly required to be made by law, or (iv) if
such indemnification is provided by the General Partner or the Partnership, in
the sole discretion of such entity, pursuant to the powers vested in the
General Partner  under the LLC Act or the
Partnership under the LP Act, as applicable;


 


(b)           against any Losses or Expenses, or advance Expenses to
Indemnitee, with respect to any proceeding instituted by Indemnitee to enforce
or interpret this Agreement, if a court of competent jurisdiction determines
that the material assertions made by Indemnitee in such proceeding were not
made in good faith or were frivolous;


 


(c)           for any amounts paid in settlement of
a proceeding unless the General Partner or the Partnership, as applicable,
consents to such settlement, which consent shall not be unreasonably withheld;


 


(d)           against any Losses or Expenses, or
advance Expenses to Indemnitee, with respect to Claims arising (i) with
respect to an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Partnership within the meaning
of Section 16(b) of the Exchange Act or (ii) pursuant to
Sections 304 of the Sarbanes-Oxley Act of 2002, as amended, or any rule or
regulation promulgated pursuant thereto; or


 


(e)           if, and to the extent, that a court
of competent jurisdiction renders a final, unappealable decision that such
indemnification is not lawful.


 


10.          Remedies of
Indemnitee.


 


(a)           Right to Petition Court.  In the event that Indemnitee makes a request
for payment of Losses and Expenses or a request for an advancement of Expenses
and the General Partner or the Partnership fails to make such payment or
advancement in a timely manner pursuant to the terms of this Agreement,
Indemnitee may petition a court of law to enforce the General Partner’s and the
Partnership’s obligations under this Agreement.


 


11

















 


(b)           Burden of Proof.  In any judicial proceeding brought under this
Section 10, the General Partner and the Partnership shall have the burden
of proving by clear and convincing evidence that Indemnitee are not entitled to
payment of Losses and Expenses hereunder.


 


(c)           Expenses.  The General Partner and the Partnership agree
to reimburse Indemnitee in full for any Expenses incurred by Indemnitee in
connection with investigating, preparing for, litigating, defending or settling
any action brought by Indemnitee under this Section 10, or in connection
with any claim or counterclaim brought by or against the General Partner and
the Partnership in connection therewith.


 


(d)           Validity of Agreement.  The General Partner and the Partnership shall
be precluded from asserting in any Proceeding, including, without limitation,
an action under this Section 10, that the provisions of this Agreement are
not valid, binding and enforceable or that there is insufficient consideration
for this Agreement and shall stipulate in court that the General Partner and
the Partnership are bound by all the provisions of this Agreement.


 


(e)           Failure to Act Not a Defense.  The failure of the General Partner or the
Partnership (including the Board, any committee thereof or Independent Legal
Counsel) to make a determination concerning the permissibility of the payment
of Losses and Expenses or the advancement of Expenses under this Agreement
shall not be a defense in any action brought under this Section 10, and
shall not create a presumption that such payment or advancement is not
permissible.


 


11.          Survival of Rights.


 


                (a)           All agreements and obligations of the General Partner and
the Partnership contained herein shall continue during the period Indemnitee is
an agent of the General Partner or the Partnership and shall continue
thereafter so long as Indemnitee shall be subject to any possible claim or
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, arbitrational, administrative or investigative, by reason of the fact
that Indemnitee was serving in the capacity referred to herein.


 


                (b)           The General Partner and the Partnership shall require any
successor to the General Partner or the Partnership (whether direct or
indirect, by purchase, merger, consolidation or otherwise) or to all or
substantially all of the business or assets of the General Partner or the
Partnership, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that the General Partner and the Partnership
would be required to perform if no such succession had taken place.


 


12.          Miscellaneous.


 


(a)           Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.


 


(b)           Binding Effect; Successors and
Assigns.  This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns (including with respect to
the General Partner or the Partnership, any direct or indirect successor by
purchase, merger, consolidation or otherwise to all or substantially all of the
business and/or assets of the General Partner or the Partnership) and with respect
to Indemnitee, his or 


 


12

















 


her
spouse, heirs, and personal and legal representatives.  The General Partner and the Partnership shall
require and cause any successor or assign (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all, substantially all, or a
substantial part, of the business and/or assets of the General Partner or the
Partnership, to assume and agree to perform this Agreement in the same manner
and to the same extent that the General Partner and the Partnership would be
required to perform if no such succession or assignment had taken place.  This Agreement shall continue in effect with
respect to Claims relating to Indemnification Events regardless of whether
Indemnitee continues to serve as a director, officer, employee, controlling
person, agent or fiduciary of any Covered Entity.


 


(c)           Notice.  All notices and other communications required
or permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given (i) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (ii) upon delivery, if
delivered by hand, (iii) one (1) business day after the business day
of deposit with Federal Express or similar, nationally recognized overnight
courier, freight prepaid, or (iv) one (1) business day after the
business day of delivery by confirmed facsimile transmission, if deliverable by
facsimile transmission, with copy by other means permitted hereunder, and
addressed, if to Indemnitee, to Indemnitee’s address or facsimile number (as
applicable) as set forth beneath Indemnitee’s signature to this Agreement, or,
if to the General Partner, at the address or facsimile number (as applicable)
of its principal corporate offices (attention: Secretary), or at such other
address or facsimile number (as applicable) as such party may designate to the
other parties hereto.


 


(d)           Enforceability.  This Agreement, when executed and delivered
by the General Partner and the Partnership in accordance with the provisions
hereof, shall be a legal, valid and binding obligation of the General Partner
and the Partnership, enforceable against the General Partner and the
Partnership in accordance with its terms.


 


(e)           Consent to Jurisdiction.  The General Partner, the Partnership and
Indemnitee hereby irrevocably consent to the jurisdiction and venue of the
federal or state courts located in the State of Delaware for all purposes in
connection with any Proceeding which arises out of or relates to this Agreement
and hereby waive and agree not to raise any defense that any such court is an
inconvenient forum or any similar claim.


 


(f)            Severability.  The provisions of this Agreement shall be
severable in the event that any of the provisions hereof (including any
provision with a single section, paragraph or sentence) are held by a court of
competent jurisdiction to be invalid, void or otherwise unenforceable, and the
remaining provisions shall remain enforceable to the fullest extent permitted
by law.  Furthermore, to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the extent manifested
by the provision held invalid, illegal or unenforceable.


 


(g)           Choice of Law.  This Agreement shall be governed by and its
provisions shall be construed and enforced in accordance with, the laws of the
State of Delaware, without regard to the conflict of laws principles thereof.


 


(h)           Subrogation.  In the event of payment under this Agreement,
the General Partner and the Partnership shall be subrogated to the extent of
such payment to all of the rights of 


 


13

















 


recovery
of Indemnitee (other than with respect to any rights of recovery under any
insurance policy maintained by the Indemnitee or by any Person (other than the
General Partner or the Partnership) for and on behalf of the Indemnitee) who
shall execute all documents required and shall do all acts that may be
necessary to secure such rights and to enable the General Partner and the
Partnership effectively to bring suit to enforce such rights.


 


(i)            Amendment and Termination.  No amendment, modification, termination or
cancellation of this Agreement shall be effective unless it is in a writing
signed by the parties to be bound thereby. 
Notice of same shall be provided to all parties hereto.  No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provisions
hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.


 


(j)            Entire Agreement.  This Agreement (i) supersedes any other
agreements, whether written or oral, that may have been made or entered into by
any of the parties hereto relating to the matter contemplated hereby; and (ii) constitutes
the entire agreement by and between the parties hereto, and there are no
representations, warranties, covenants, agreements or commitments except as
expressly set forth herein.


 


(k)           No Construction as Employment
Agreement.  Nothing contained in this
Agreement shall be construed as giving Indemnitee any right to be retained or
continue in the employ or service of any Covered Entity.


 


[signature
pages follow]


 


14

















 


IN
WITNESS WHEREOF, the parties hereto have executed this Second Amended and
Restated Indemnification Agreement on and as of the day and year first above
written.


 


	
   

  	
  MarkWest Energy GP, L.L.C.

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MarkWest Energy Partners, L.P.

  
	
   

  	
  a Delaware limited partnership

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  MarkWest Energy GP, L.L.C. as its general partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  



 


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